Accountability and Transparency: History

History

Citizen Oversight in Athens and Rome

One of the most notable achievements of Athenian democracy in ancient times was its establishment of civilian oversight of public funds as well as of the wealth and incomes of all public figures (including generals) so that they did not benefit from their public positions. Auditors, financial controllers of the treasury, and judges were chosen annually by lot. This system of accountability stood in stark contrast to nearly all other governments in the ancient world, most of which were despotic and marked by corruption, personal enrichment, and self-aggrandizement. In the Roman Republic, there were elected quaestores from both the patrician and plebeian classes who oversaw the public finances. A quaestorship for either a patrician or plebeian was often the first step in a series of offices that characterized a career of public service. Many times, however, a quaestor would overlook public corruption in order to gain favor with a higher official.

Two Precedents of Accountability

In England, the Magna Carta, which was signed in 1215, introduced one of the first standards of accountability in government by forcing King John to accept the basic principle that taxes should not be raised without first consulting feudal barons, and later, by extension, all property owners of a certain wealth. Representative councils had to be called to review the monarch's expenditures. Out of this historic agreement grew a form of constitutional monarchy in which the parliament asserted increasingly greater powers. Another significant precedent was set in 1517 when Martin Luther, a doctor of theology at the University of Wittenberg, distributed his “Ninety-Five Theses on the Power and Efficacy of Indulgences.” Among other clerical abuses, Luther challenged, on both temporal and spiritual grounds, the common Church practice of selling indulgences (absolution from eternal punishment for forgiven sins). Selling indulgences was a long-standing fund-raising strategy, approved by the pope, which enriched the clergy and the Church proper. In challenging both the spiritual and the temporal authority of the pope, Luther was asserting the right of believers to demand accountability from religious authority. In doing so, he sparked the Reformation, the beginning of a schism within Christianity between Roman Catholicism and Protestantism.

Embedded in the Constitution

With the rise of representative government, accountability and transparency became much broader in scope. Government in a democracy, as an expression of the people's will, is accountable to all of the country's citizens, not just the wealthiest or most propertied among them. In the United States, concepts of accountability and transparency were embedded in the Constitution, its provisions often directly responding to prior abuses of authority by the British crown, such as arbitrary arrests and the confiscation of property by the king. The US Constitution requires the legislative and executive branches to publish laws, regulations, and proceedings and prevents government’s seizure of private property without a clear public interest and proper compensation. The Constitution also requires the president to report periodically to Congress on the state of the union and to fully account for the national government's expenditures. All of these constitutional obligations were intended to ensure that the public was made aware of the government's actions and could hold the government and its elected representatives accountable for those actions. Ultimately, however, it was the protection of free speech in the Bill of Rights that James Madison believed would “arm” the people with the “power” of knowledge to hold their public officials accountable.

The Powers of Congress

In the United States, elections are the most basic power of accountability: voters have the power to replace or recall their own representatives (either through regular or special elections) in cases of abuse of power, illegality, or simply not living up to the expectations of voters. In addition, the House of Representatives has the power to impeach (that is, to indict), and the Senate has the power to convict and remove from office, the president, vice president and other “civil officers” (especially those whose appointments are approved by the Senate, such as judges). This occurs in cases of "treason, bribery or other high crimes and misdemeanors." Each chamber of the Congress also has the power to remove its own members by a two-thirds vote. Yet, these powers are not used often. Since 1789, the House of Representative has initiated impeachment proceedings against federal judges only 60 times and just 15 federal judges were actually impeached (all were convicted and removed from office by the Senate). There have been three impeachment proceedings initiated and two impeachments of sitting presidents, with none convicted. Only one senator has been expelled from office by his colleagues.

Public Accountability

Until the late 1800s, there was little true public accountability for US government officials beyond ineffective anti-bribery statutes. Government operated according to the spoils system, in which the winner doled out jobs according to party and candidate loyalty. The first comprehensive civil service law governing federal employment, the Pendleton Act, was passed in 1883, following President James Garfield's assassination by a disgruntled office seeker in 1881. The Pendleton Act established minimum standards as well as competence and qualification examinations for employment, a merit-based promotional system, and job and pay classifications within the civil service. The aim of the Pendleton Act was to ensure that the executive branch “faithfully execute the laws” of the United States as required by the Constitution rather than respond to the needs of political parties or individuals. The act still forms the basis for civil service standards today.

As noted above, the US Constitution includes specific provisions for the publishing of all laws and proceedings of the Congress together with an annual report on the “state of the union” by the President. These provisions have been faithfully followed since the meeting of the First Congress. In 1966, President Lyndon Johnson signed the precedent-setting Freedom of Information Act (FOIA), which opened up the government’s business more fully to public view and gave citizens the right to request information from the executive branch (except documents that have a “secret” classification for national security reasons). FOIA requests to government agencies are now a standard part of the professional toolkit of journalists, historians, and citizen activists, as well as a way for ordinary citizens to obtain information about governmental actions, including the abuse of power.

Other laws designed to ensure public accountability were enacted in the wake of the Watergate scandal. The scandal involved a botched break-in at the headquarters of the Democratic National Committee in a building complex called Watergate. The break-in was ordered by aides to President Richard Nixon seeking to weaken Nixon’s political opponents and thus help secure his 1972 re-election. The Watergate investigation uncovered other illegal activities by members of the Nixon Administration and his re-election campaign as well as the President’s complicity in covering up the crimes afterwards. President Nixon's protracted challenges to the authority of Congress and the judiciary caused a constitutional crisis leading to an impeachment proceeding by the House of Representatives that ultimately forced President Nixon to resign from office. It is the only such case in US history. In the end, Congress, the media, the public, and the Supreme Court acted to expose the scope of the president's transgressions and protect the US Constitution.

The Watergate crisis led to the enactment of a series of laws to expand public access to information, such as the Sunshine Act of 1976. This law obliges all government agencies to publish a schedule of its planned meetings, which must be open to the public. The Ethics in Government Act, adopted in 1978, establishes basic standards of behavior of public officials, such as limiting gifts and requiring public disclosure of income.

The Role of the Media and the Supreme Court

The role of investigative journalism is one of the most well-known and celebrated aspects of the Watergate scandal and points to the crucial importance of a free media in exposing wrongdoing and keeping the public informed of the actions of the government and elected officials. Washington Post journalists Carl Bernstein and Bob Woodward, in addition to other journalists, uncovered many of the facts of the case through their investigations and reporting. Up until 1964, the media actually had few rights to investigate government actions. Two US Supreme Court decisions were essential in strengthening the media's position: New York Times v. Sullivan (1964) and The Pentagon Papers Case (1971), which also involved The New York Times. The Supreme Court decisions in these two cases strengthened the media's rights to obtain information from government, publish material about officials (even when they are not fully accurate), and print materials that the government has kept secret from the public (for a fuller discussion of these and other cases see History in Freedom of Expression).

Nevertheless, journalists often find themselves in conflict with government and legal authorities over such reporting, especially in protecting the sources of classified or sensitive information. Such sources are usually government employees pledged by a public oath not to reveal the government’s secrets. In the case of federal secrets, journalists are subject to imprisonment for keeping the identities of their sources anonymous, if ordered by a court to reveal them. At the state level, forty-nine states have adopted shield laws protecting journalists from being forced to reveal sources, but on the federal level no such law exists. In Branzberg v Hayes (1972), the Supreme Court ruled that journalists do not possess a right above other citizens to protect sources in cases involving information about criminal acts, including the revealing of classified information by government officials. In 2003, a New York Times reporter, Judith Miller, was sentenced to 18 month’s imprisonment for not revealing the source for a story that revealed the name of covert CIA operative, Valerie Plame. After failing in a legal challenge, Miller went to jail for 85 days and was released only after agreeing to name the source, the chief of staff to the Vice President). In response to the “Plame affair” and Miller’s imprisonment, several news organizations renewed their efforts to adopt a national “shield law” that would protect journalists from having to reveal their sources in criminal or federal cases. Similar laws have been adopted in many other countries.

In the US, the issue of accountability and transparency in areas of national security remains contentious. In 2013, a former CIA contract hire, Edward Snowden, revealed documents detailing the National Security Agency’s broad data mining program, which targeted both foreign nationals and American citizens. The data was obtained from internet and telephone companies and other means. The Snowden revelations prompted a widespread debate on the government’s collection of information on private citizens. President Obama has defended the practice of wholesale collection of telephone records, which was done by order of a special court established under federal statute. But he also called for a broader debate about government actions undertaken pursuant to the Patriot Act to investigate terrorist threats and he subsequently initiated a government review of the NSA’s and other government agencies’ practices. In January 2014, he proposed changes to the procedures that would end the NSA’s bulk collection of telephone records but keep these records in private companies’ hands.

The issue of accountability and transparency has gained greater attention as a result of the decision of the US Supreme Court in the case Citizens United v. FEC (2010). In that case, a 5-4 majority ruled that “political speech” by individuals, corporations, or non-profit organizations, including speech aimed at trying to support or oppose political candidates and influence election results, could not be limited or banned within the framework of laws governing campaign finance. The ruling invalidated as unconstitutional certain provisions of the Bipartisan Campaign Reform Act of 2002 (often referred to as McCain-Feingold) banning specific election-related expenditures by corporations and held that no such expenditures could be restricted under the First Amendment’s broad protection of free speech. Although restrictions on fund-raising and expenditures for individual campaigns remain valid, the Citizens United decision has given rise to “super PACs,” or Political Action Committees that now can raise unlimited sums — often without any transparency as to the donors — in order to influence election results so long as they remain independent of the individual campaign expenditures of candidates. Since the Citizens United ruling there has been a large increase in the level of financing for all election campaigns — from the lowest judgeship to the presidency — by the most wealthy individuals and corporations, according to The New York Times (see Resources). An earlier Supreme Court decision on which Citizens United was based (Buckley v. Valeo in 1976) allows unlimited self-financing of individual campaigns, giving rise to millionaires and billionaires financing their own campaigns for many offices, including the presidency. According to the Center for Responsive Politics, one result of the Buckley decision is that in 2014 — for the first time in US history — a majority of the 534 Representatives of the House and Senators are millionaires. Ultimately, citizens retain the power of accountability through the ballot box and have used that power to reject a number of wealthy candidates and candidates backed by well-funded super PACs. Nevertheless, there continues to be large concern — as reflected in recent presidential and other elections — concerning the impact of these Supreme Court decisions that have equated the spending of money on politics and free speech. Many politicians and public civic organizations have called for the reversal of the Citizens United decision.

Beyond the United States

Today, most democracies (presidential, parliamentary, or mixed) have established principles of transparency and accountability.

Corruption and the lack of accountability have become important factors in world events.

Western European countries, most of which have parliamentary systems, began to adopt domestic legislation for accountability and transparency in the 1950s. Now, accountability and transparency laws are basic qualifications for membership in both the Council of Europe and the EU. The Organization for Economic Cooperation and Development (OECD) has adopted standards and proposes model legislation to govern institutions, such as corporations, nonprofit organizations, and trade unions. The United Kingdom has also enacted comprehensive freedom of information legislation for the public sector (see Resources).

Elsewhere in the world, the achievement of accountability and transparency in government has been mixed. Many electoral democracies have moved decisively to end corruption and introduce standards of accountability, but a number have not, leading to high levels of malfeasance and lack of transparency in government. Newer democracies, like Philippines and Indonesia, struggle with overcoming the corrupt practices that became entrenched during long periods of dictatorship. Many other countries remain mired in dictatorship and their leaders rule corruptly, in an environment of impunity. They are simply immune from public accountability (see, in this section, Country Study of Kazakhstan).

Corruption and the lack of accountability have become important factors in world events. "People power" was the term used to describe the hundreds of thousands of people who demonstrated in the Philippines in 1986 outraged by the rampant corruption and abuse of power by the government and family of longtime ruler, Ferdinand Marcos. He was forced to resign (see County Study of the Philippines in this section). Recently, corruption was a significant issue in the formation of popular movements against nondemocratic governments in Serbia (2000), Georgia (2003 and 2012), and Ukraine (2004 and, more recently, 2013-14). In these countries, and many others, the public's disgust at pervasive corruption has been a force for democratization.